Reasons for not blindly following the founding fathers
Here are some of the many reasons why we should not blindly try to follow the founding fathers' thoughts when interpreting the Constitution:
(1) Commonly held views and principles change over the years. The Founders would not have been happy living under all of our principles, so why should we be happy living under all of theirs?
(2) After more than two centuries, the thoughts of the Founders -- particularly the lesser-known Founders -- are difficult or impossible to discern. There is often no consensus today about the thoughts of individual Founders.
(3) The founding fathers often disagreed sharply. Which founding fathers should we follow?
(4) Many big constitutional issues today, such as abortion, environmental protection, and freedom of expression on the Internet, were not even on the radar screens of the founding fathers. Consider environmental protection, for example. When current CJ John "Ump" Roberts was an appeals court judge, he actually argued that Congress had no authority to protect a particular species of toad because that toad lived in only one state and hence was not covered by the interstate commerce clause. As for abortion, Congress has absurdly tried to use the commerce clause as a basis for a law prescribing prison terms for bus and taxicab drivers who transport underage females across state lines for the purpose of evading state parental consent or notification laws concerning abortions.
(5) There were glaring omissions in the Constitution. For example, the general rule prohibiting states from burdening interstate commerce is not in the Constitution (!) -- this rule is sometimes called the "dormant commerce clause." The courts knew that giving the states carte blanche to burden interstate commerce would result in chaos, so the courts just invented the "dormant commerce clause" out of thin air. Our Constitution would not have survived so long with comparatively few changes if there had there not been great flexibility in constitutional interpretation.
(6) A lot of the Constitution cannot be interpreted literally. For example, the first amendment says that "Congress shall pass no law . . . . abridging freedom of speech." Interpreted literally, this clause would not apply to written and symbolic expression and state and local governments.
(7) The people did not have a chance to vote on the individual provisions of the Constitution (not to mention that popular views have changed greatly with time) -- the Constitution was just presented to the states for ratification as an all-or-nothing package deal. When ratifying the Constitution, some states said that they reserved the right to secede from the union.
(8) The Founders were not all-wise and all-knowing -- they were merely people who happened to be in the right place at the right time. If the War of Independence had failed, they would just be footnotes in history.
A lot of myths have been created about the Founders. For example, the Founders have been presented as a bunch of Voltaires and Rousseaus. However, I don't know of any prominent Founder who was a professional philosopher -- the Founders were generally lawyers, merchants, farmers, judges, bankers, etc..
It is unfortunate that so many prominent people in the field of law are members of the Federalist Society, which is dedicated to the worship of the founding fathers. I predict that this worship of the founding fathers is going to produce a backlash.
Labels: Establishment clause